Limits on the ability of courts to curb Trump's abuses of power
More immediate and effective measures require congressional action.
The Supreme Court decision on tariffs was disappointing in this respect: It vividly illustrated the difficulty, bordering on futility, of curbing Donald Trump’s abuses of power through the courts.
The International Emergency Economic Powers Act gives the president a range of options to deal with an “unusual and extraordinary threat” emanating from a foreign country. Trump promulgated two sets of tariffs under the act. The first was imposed on Mexico, Canada, and China based upon the “threat” of fentanyl trafficking. The second was imposed on virtually every country in the world based on our country’s trade deficit. In the second set, Trump claimed that, under the IEEPA, he could impose a tariff of any size on any country, and change it at any time.
An argument could be made that fentanyl constituted an “unusual and extraordinary threat” emanating from a foreign country. No such argument can be made about the trade deficits. They are not “unusual”, nor “extraordinary”, nor a “threat”. In passing the IEEPA, Congress had no intent to give the president unlimited authority to impose tariffs of any amount on any country, and change them at his whim, to address trade deficits. There are other specific statutes conferring on the president the authority, subject to procedural and other constraints, to deal with trade deficits.
Trump and his administration do not look at the law, objectively considered, to ascertain what authority he has in a particular situation. Instead, Trump and his administration decide what they want to do, identify a legal fig leaf to cover it, and blunderbuss ahead.
Trump clearly abused his power, in a number of ways, by using the IEEPA to impose ever-changing tariffs on the whole world to address trade deficits. Indeed, Trump wielded his claimed IEEPA tariff authority indiscriminately against other countries for things that had nothing to do with trade deficits. In fact, he imposed IEEPA tariffs against countries with which the United States has a trade surplus.
The totality of Trump’s abuse of his IEEPA authority wasn’t before the U.S. Supreme Court. Instead, the court considered a very narrow question: Were tariffs included in the range of options granted to the president by the IEEPA? Six justices said that they weren’t. Three justices said that they were.
I thought that Brett Kavanaugh’s dissent made a pretty persuasive case that tariffs were among the options. The same language in the IEEPA, “regulate …importation”, had been used by Richard Nixon to impose a tariff under a predecessor statute just a few years prior to the IEEPA’s enactment. That’s strong evidence, from an originalist and textualist standpoint, that, in using that same language, Congress was including tariffs among the options.
Let’s consider a counterfactual, assuming that Kavanaugh’s statutory interpretation had prevailed. The way in which Trump was using that tariff authority would still, on a number of other grounds, be an abuse of his power contrary to the whole tariff scheme Congress has enacted. Yet nothing would have happened to curtail it.
Trump first announced his IEEPA trade deficit tariffs in early April of last year. It has taken nearly eleven months for the case to reach the U.S. Supreme Court and be decided, which, by court standards, is marching double time. In the meantime, roughly $130 billion in tariffs, now declared illegal, were paid. The domestic economy has been roiled, as has our relations with other countries.
The difficulty, bordering on futility, was further illustrated by what Trump did next. He imposed a 15% universal tariff based upon what is known as section 122 Trade Act authority. This is an even more blatant abuse than what Trump did with the IEEPA.
Section 122 doesn’t even deal directly with trade deficits. Instead, it gives the president authority to use tariffs to address “large and serious United States balance-of-payments deficits”. The United States has a trade deficit, but the balance-of-payments calculation includes other capital flows. Our trade deficits are largely offset by capital inflows. There is no “large and serious” balance-of-payments deficit.
Those businesses required to pay these new, even more legally suspect, tariffs could go back to court seeking relief. However, although the abuse is even clearer, that doesn’t mean the odds of success are better.
Judges are reluctant to weigh in on subjective questions, such as what constitutes an “unusual and extraordinary threat” or a “large and serious” balance-of-payments deficit. Wide deference is given to the executive’s determination of whether these thresholds have been reached.
This is not intended as criticism of the courts. Judges should limit themselves to the narrow legal issues presented by the litigants. They are correctly reticent about second-guessing threshold determinations Congress has vested in the executive, irrespective of how divorced from objective reality they may be. Courts work slowly to ensure full and careful consideration is given to the arguments and evidence of all the parties in a case.
However, the hope that the courts could be the guardrail that effectively curbs Trump’s abuses of power has been proven threadbare. The guardrails governing the courts limit what they can do given the avalanche of abuses emanating from the Trump administration.
If our politics were healthier, there would be a more immediate and effective reaction from Congress. After all, most of Trump’s abuses involve the usurpation of congressional authority, or acting in clear violation of congressional intent.
Given what the Trump administration is doing, the logical response would be for Congress to remove threshold determinations that trigger extraordinary powers from the president and return them to Congress. Require a congressional resolution declaring that there was an “unusual and extraordinary threat” before the enhanced powers under the IEEPA are triggered. Require a congressional resolution that the United States is facing “large and serious” balance-of-payments deficits to trigger the authority to impose tariffs to address them.
Politics has always been a team sport in the United States. However, when our politics were healthier, members of Congress regarded themselves as on two teams: their political party and the institution in which they served. They were protective of the constitutional role and authority of the chamber of Congress in which they held a seat.
Republicans have most clearly and thoroughly abandoned this institutionalism. House Speaker Mike Johnson transparently acts, and even describes himself, as just another agent of the Trump White House. There are a scant handful of Republicans in Congress exercising any independent judgment at all.
But the abandonment is bipartisan. Congressional Democrats cheered when Barack Obama granted legal status to dreamers, people brought to this country illegally as children, despite having said earlier that he had no constitutional authority to do so. Congressional Democrats cheered when Joe Biden serially sought to skirt court decisions saying he had no authority to unilaterally implement large-scale student debt forgiveness.
Perhaps there is some hope that Trump’s vast overreach and abuses of power will engender a bipartisan renewal of support for the separation of powers and constitutional constraints on the executive, both in Congress and in the body politic. I confess that I have difficulty mustering much of it.
Reach Robb at robtrobb@gmail.com.